Aivars Lembergs' defense asks to speed up the trial

Expressing concern that reasonable deadlines in criminal proceedings are not being respected, the defense of Aivars Lembergs requested a week and a half ago that an extraordinary court session be scheduled as early as December this year.

As is known, the first official hearing of the appeal in the Lembergs case is scheduled to take place only on January 24, 2022.

"The criminal proceedings against Aivars Lembergs have been ongoing since 1999 and have lasted for 22 years, which cannot be considered a reasonable period of time," the request reminds.

If the appellate court cannot remedy the violations

The main reason for convening the extraordinary hearing is the reasoned requests in several appeals to refer the case back to the court of first instance for a new trial. The requests are based on the fact that the judgment of the first instance contains violations of the Criminal Procedure Law "which necessarily lead to the annulment of the judgment, and these violations cannot be remedied in the appellate instance without violating the rights of the defense".

The Criminal Procedure Law provides for such a procedure:

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Section 566. Competence of an Appellate Court in the Sending of a Criminal Case to a Court of First Instance for Examination De novo

If, in examination of a case, an appellate court determines violations of this Law that bring about the revocation of the judgment or another significant violation of this Law, which it cannot eliminate by itself without infringing the right to defence of the accused, such court shall, at any time of trial of the case by having heard opinions of the participants to the case, take a decision to revoke the judgment of a court of first instance completely or in a part thereof, and to send the case to a court of first instance for examination de novo.

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Consequently, when the appeal is heard on January 24 next, the court will also have to decide on these requests. However, in order to avoid undue delay in the examination of the case, these requests may also be decided earlier.

If the case has to be sent back to the first instance court anyway, it is better to do so sooner rather than later in the interests of reasonable time limits for criminal proceedings.

It is for the court to decide

In addition to the arguments in other appeals that there are "unequivocal" violations of the Criminal Procedure Law "which justify revoking the judgment and referring the case back to the court of first instance" because "these violations cannot be remedied at the appellate instance without violating the rights of the defense", A. Lembergs' defense also analyzed other aspects.

One of the arguments why the case should be sent back to the court of first instance is that the judgment of the court of first instance does not contain a description of the offence, which would have been made by the court itself. Meaning, "the descriptive part of the judgment of the court of first instance copies the accusation rather than giving a description of the offence as established by the court. The judgment of the court does not comply with the requirements of Section 527(1) of the Criminal Procedure Law."

Based on the decisions of the Senate of the Supreme Court, the request states that "it is well established in case law that in such cases the judgment of the court of first instance must be revoked and the case must be referred back to the court of first instance for a new trial".

It should be recalled that in May this year, Neatkarīgā also noticed that the court did not write the judgment itself, but in several sections simply copied the accusation word for word, with all the errors of grammar and facts (see here), with all the obvious fallacies and contradictions (see here).

Two judges are not a court composition

The fact that the case was tried before an "unlawful court composition" and that "the unlawful court composition decided substantive procedural issues" is also an important ground for referring the case back to the court of first instance.

Such a fundamental violation of the Criminal Procedure Law "necessarily leads to the annulment of the decision" - if not on appeal, then certainly in cassation.

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Section 575. Substantial Violations of the Criminal Procedure Law

(1) The following are substantial violations of the Criminal Procedure Law that bring about the revocation of a court ruling:

1) a court has examined a case in an unlawful composition;

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We're talking about the three hearings held on August 19 and 26, 2019, and September 3, 2019. That is to say, although the case had been heard for 10 years by a three-judge panel headed by Judge Boriss Geimans, with Ārija Ždanova as a reserve judge, on the three dates in question the hearings were suddenly held by a two-judge panel headed by Irīna Jansone.

On all three dates, Judge I. Jansone opened the hearings, despite the fact that according to Section 493 of the Criminal Procedure Law "the chairman of a court hearing shall open the court hearing".

For example, on August 19, I. Jansone announced: "I declare the hearing open." She went on to not only name the persons who had appeared at the hearing, but also to state that "we do not have the chairman, Boriss Geimans, who is ill and will be absent for the whole week, and will only appear next Monday".

But Section 494 of the Criminal Procedure Law states:

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Section 494. Verification of the Attendance of Summoned Persons

(1) The chairperson of a court hearing shall notify which of the persons summonsed to case have arrived, whether the persons who have not arrived have been notified of the court hearing, and regarding the information that has been received regarding the reasons for the non-arrival thereof.

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It is clear from what I. Jansone says (saved in an audio-recording) that she herself admits that she is not the real chairperson of the hearing because the real chairperson of the hearing "is ill".

As A. Lembergs concluded in his appeal, "Judge I. Jansone, without being authorized to do so, took the chair of the hearing, in effect usurping power". "Judge Jansone, without being authorized to do so, carried out procedural acts which are the exclusive function of the chairperson of a court hearing."

At the hearings in question, the question of the requests submitted by A. Lembergs was decided, and the opinion of the public prosecutor was heard. But the main thing that happened during these three hearings was that A. Lembergs was forced to use a state-paid defense counsel, Genādijs Ivankins, and it was completely pointless because he was unable to provide a defense without sufficient preparation, as he himself regularly admitted during the hearings.

During these three other hearings, the court, composed of two judges, prohibited A. Lembergs from using the lawyer Aivo Leimanis for his defense, thus effectively denying him the right to a defense.

When did the composition of the court officially change?

It is significant that the composition of the court in the Lembergs trial was officially changed only at the fourth hearing, which took place on September 9. Then I. Jansone read out the decision of the Chairperson of the Riga Regional Court that Judge B. Geimans had been replaced by the reserve judge, Ārija Ždanova, due to incapacity for work. I. Jansone also stated that by order of the Chairperson of the Riga Regional Court she had been appointed "chairperson of the hearing".

Neatkarīgā's correspondent attended these hearings; the events of these hearings in autumn 2019 have been described both in the print version of the newspaper Neatkarīgā and on NRA.lv.

As stated in the request described here, the Criminal Procedure Law allows in such a situation to decide at any point during the trial on the referral of the case for a new trial to the court of first instance.

Given that the court is currently taking the time to familiarize itself with the entire case, deciding as soon as possible on the question of referring the case back to the first instance would "save the court's resources", the request logically concludes.